Opinion
No. 56847-7-I.
April 9, 2007.
Appeal from a judgment of the Superior Court for King County, No. 03-2-39913-2, Carol A. Schapira, J., entered March 7 and August 12, 2005.
Reversed and remanded by unpublished opinion per Coleman, J., concurred in by Agid and Becker, JJ.
Sandra Harris sued her former employer, the Washington State Department of Corrections (DOC), after her termination, alleging disability discrimination, gender discrimination, retaliation, and outrage. The trial court dismissed one gender discrimination claim on summary judgment, but a jury found for Harris on her disability discrimination and outrage claims. DOC now appeals those verdicts as not supported by substantial evidence and also alleges instructional error, while Harris cross-appeals the dismissal of one of her gender discrimination claims. We conclude that the verdicts are not supported by substantial evidence in the record, and accordingly reverse. We also affirm the trial court's dismissal of one of Harris's gender discrimination claims on summary judgment.
FACTS
The facts are essentially undisputed, except where noted. Harris offered some explanation for her actions, or asserted that the actions had been mischaracterized, but does not dispute that these interactions occurred.
Harris became a DOC volunteer in 1993 and obtained a permanent part-time position as a community corrections officer (CCO) in 1996. She applied for a full-time position in 1998, and an interview was scheduled. The DOC supervisor who prepared the interview questions also prepared written potential answers to the questions. Harris obtained a copy of the potential answers before her interview and used those potential answers, sometimes verbatim, during her interview. The interview panel suspected that Harris had obtained the potential answers, and Harris admitted that she had. Harris was not considered for the position, and DOC field administrator Pamela Maddess directed the interview supervisor to issue Harris a letter of reprimand.
In August 1998, Maddess met with Harris to discuss Harris's violation of a co-worker's personal safety plan, which had been established to protect the co-worker from Harris's harassment. During the meeting, Harris raised her voice, gestured at Maddess, and used vulgarity. Maddess advised her to behave professionally.
Richard Sande was Harris's supervisor from late 1998 through late 1999 and testified that Harris possessed excellent technical skills, but could also be volatile. In one meeting with Sande, Harris began screaming to the point where Sande considered calling the police. He completed at least one Employee Conduct Report (ECR) — an investigative tool used by DOC management regarding employee behavior — but did not file it.
The filing of an ECR begins an investigative process, but the ECR itself is not discipline — discipline can be imposed at the end of the investigation or the investigation can reveal that no discipline is required.
Dennis Wheeler became Harris's supervisor in 2000. He heard from Maddess and other supervisors that Harris had had interpersonal conflicts at work. At a meeting he scheduled to implement new legislation, Wheeler testified that Harris became angry about the new rules, stood up, and said loudly, "This is bullshit," and left the meeting. Wheeler did not issue an ECR. Verbatim Report of Proceedings (VRP) (June 22, 2005) at 209-10.
Harris testified that she said, "This is crap." VRP (June 23, 2005) at 477.
In November 2000, Harris applied for a full-time CCO position, but the interview panel recommended two other candidates over Harris. Harris was not offered the job, and two males with less CCO experience than Harris were hired.
Later that month, Harris had a confrontation with an attorney (who represented one of the offenders she worked with) in the Pierce County Courthouse. She yelled in the attorney's face and repeatedly told the attorney to stop talking to her while she was talking to the offender. She told the attorney that he did not need to be present with the offender during this conversation and that he should leave. She loudly interrupted the attorney's attempts to explain and refused to talk to him. The attorney claimed that she also told the offender that if he did not keep his attorney out of her face, he would be sentenced to more than her recommended 30-day incarceration period. Harris testified that she discussed only a 30-day recommendation for the offender, but acknowledged a heated confrontation with this attorney in the courthouse. The confrontation was witnessed and reported by other CCOs, and Maddess initiated an ECR for this incident.
That afternoon, Wheeler was showing the executive assistant to the Secretary of Corrections around the office and introduced him to Harris. Wheeler testified that Harris was rude and curt with the assistant and that the assistant commented to him that the interaction was unprofessional. Harris testified that Wheeler knew she was angry (because she had not been promoted) and should not have introduced her to the assistant that day. Wheeler notified Maddess of this incident, and she reported it in an ECR.
A few days later, Harris met with Wheeler to discuss why she had not been offered a full-time position. Wheeler explained that she had a history of behavior problems and was "high maintenance." VRP (June 23, 2005) at 491. Harris told Wheeler she would seek an attorney regarding her nonselection for a full-time position.
James Blodgett (a DOC regional administrator) and Maddess met to discuss Harris's recent behavior issues and their concern about Harris's lack of professionalism. Blodgett told Maddess that unless Harris can understand the seriousness of her behavior, she should be placed on paid home assignment pending completion of an investigation. Maddess explained her concerns with Harris and testified that Harris denied any wrongdoing. Maddess placed Harris on paid home assignment on November 15, 2000.
Blodgett met with Harris to hear her version of events and testified that again Harris denied any wrongdoing and did not understand his concerns about her behavior. Blodgett determined that discipline was appropriate. In January 2001, Blodgett returned Harris to work and issued her a disciplinary letter, reducing her pay for three months. He warned Harris that further disciplinary actions could result in her termination, and he recommended anger management counseling.
While Harris had been on home assignment in December 2000, another full-time CCO position opened. She expressed interest in this position, but Wheeler did not consider her for the position. He testified that he decided not to interview her because he had no obligation to do so under DOC's merit rules system and because she had a history of behavior problems. A male candidate with no CCO experience was hired.
When Harris returned to work, she discovered that another employee, Angelique Regis, was now sitting at her former desk. Regis testified that Harris rifled through the desk drawers, looking for personal belongings she may have left in the desk, and told Regis that she would be sitting at that desk in three months, whether or not Regis was still there. Regis was upset by this incident, and Wheeler told Harris that her behavior was intimidating to Regis and that she needed to be respectful of her co-workers. Wheeler issued Harris a letter of corrective counseling, encouraging her to modify her angry behavior and setting out expectations that Harris would not make any derogatory remarks about her co-workers or supervisors in the future.
A few months later, Harris called Regis over to her desk to discuss a work-related matter. In this conversation, Harris told Regis that it was rumored that Regis was having an affair with Wheeler. She also told Regis that it was speculated that Wheeler's divorce resulted from another affair with a DOC employee. Harris testified that both Regis and Wheeler (who had noticed the conversation) thanked her for talking with Regis, but Regis subsequently took stress leave from work because of this conversation. Wheeler later talked to Regis about the conversation and then filed an ECR, claiming Harris had violated workplace behavior expectations and contributed to a hostile work environment.
Wheeler was not asked specifically whether he thanked Harris for speaking with Regis, but indirectly denied thanking her because he testified repeatedly that he did not talk to Harris before he filed the ECR about her conversation with Regis. VRP (June 23, 2005) at 301-07.
Harris was angry that she was being issued an ECR and talked to Blodgett multiple times, saying she would "get" Wheeler for this. VRP (June 28, 2005) at 891, 963-65, 968-70. Blodgett placed Harris on paid home assignment. He met with her to hear her version of events, but Harris became angry during the meeting and left. The investigation relating to Harris's recent ECR was completed a few weeks later, and Blodgett decided to impose a letter of reprimand — rather than discipline — because Harris had agreed to pursue counseling.
In August 2001, Harris settled a grievance by agreeing in writing to be evaluated by a DOC-selected provider and to complete a DOC-selected program based on the provider's recommendations. She testified that she did not understand that she would be undergoing a fit-for-duty evaluation, but believed that she had agreed to anger management counseling only. Psychologist David Smith evaluated Harris in September and found her not fit for duty, and he believed she had a personality disorder. He recommended evaluation by psychiatrist Kathleen Decker. Harris went to Decker's office, where Decker asked her to complete paperwork for a fit-for-duty evaluation. Harris refused to sign the paperwork and became angry with Decker, and Decker threatened to call security if Harris did not leave.
Harris then told Blodgett she would not undergo further evaluation. Smith had told Blodgett that he believed Harris had a personality disorder and needed counseling, and Blodgett arranged for Harris to obtain counseling. She completed counseling and obtained a fit-for-duty release. While Harris was on home assignment during this evaluation and counseling process, she was paid wages and benefits for approximately eight months, but then was placed on unpaid leave under the Family Medical Leave Act for approximately eight more months.
After Harris had been found fit for duty, Blodgett invited Harris to a meeting to offer her a full-time CCO position under a different supervisor in another DOC field office. During this meeting, Harris became angry with Blodgett over how she was treated, and she testified she was "venting" about her frustrations. VRP (June 27, 2005) at 576-77. She accused him of being unethical and trying to influence the fit-for-duty evaluators. Harris testified that she made that accusation because an evaluator told her that Blodgett had called him to discuss the evaluation.
Blodgett later learned that Harris had secretly tape-recorded that meeting and played the tape for two other DOC employees. Harris was issued an ECR for tape-recording the meeting and again placed on home assignment. Harris talked about the investigation with the co-workers who had heard the tape, and another ECR was issued, claiming that Harris, by Page 8 encouraging a co-worker to lie, had tampered with a witness.
DOC investigated these incidents and concluded that Harris had committed gross misconduct, neglect of duty, and willful violation of policy. Harris was terminated and appealed her termination to the Personnel Appeals Board (PAB). PAB affirmed the termination as lawful, and Thurston County Superior Court affirmed PAB's findings.
Harris sued DOC, claiming that its failure to promote her in November and December 2000, its imposition of home assignment, and its required medical evaluations were discriminatory based on a perceived disability. She alleged DOC's failure to promote her was also gender discrimination and the subsequent home assignment and medical evaluations were retaliation for her complaints of gender discrimination. She also claimed outrage. DOC moved for summary judgment, and the court dismissed the gender discrimination claim for the November 2000 nonselection only.
The other claims were tried before a jury, which returned special verdicts for Harris on three claims: discrimination based upon a perceived disability ($25,000), hostile work environment based on a perceived disability ($1), and outrage ($75,000). The jury found that DOC was not liable on Harris's claim of gender discrimination (with respect to the December 2000 nonselection) and retaliation.
DOC moved for an order vacating the verdict, which the trial court denied, and this appeal followed.
Analysis Disability Discrimination: Disparate Treatment
DOC argues that Harris did not establish a prima facie case of disability discrimination because neither of the decisionmakers involved in the allegedly adverse employment actions perceived Harris to be disabled, and none of DOC's actions were adverse.
Washington's Law Against Discrimination (WLAD) prohibits employment discrimination based on an employee's actual or perceived disability. RCW 49.60.010; Barnes v. Wash. Natural Gas Co., 22 Wn. App. 576, 591 P.2d 461 (1979) (holding that although WLAD prohibits discrimination based on an actual disability, those perceived to be disabled are also protected under WLAD). An employee alleging disability discrimination must establish that he or she (1) is in a protected class — actually or perceived to be disabled, (2) was subject to an adverse employment action, (3) was doing satisfactory work, and (4) was treated differently than someone not in the protected class. Kirby v. City of Tacoma, 124 Wn. App. 454, 468, 98 P.3d 827 (2004). If the employee cannot establish all of these elements of a prima facie case, then the employer is entitled to judgment as a matter of law. Kirby, 124 Wn. App. at 464.
If the employee can establish a prima facie case, then the burden shifts to the employer to provide a nondiscriminatory explanation for the adverse employment action. Kirby, 124 Wn. App. at 464. If the employer can provide a nondiscriminatory reason, then the burden shifts back to the employee to show that the employer's stated reason is actually a pretext for discrimination. Kirby, 124 Wn. App. at 464. If the employee does not make this showing, then the employer is entitled to judgment as a matter of law. Kirby, 124 Wn. App. at 464.
DOC argues that Harris put forward insufficient evidence that she was disabled, or perceived as disabled, or that she was subject to adverse employment actions. In reaching its verdict for Harris, the jury found that both of these elements had been met, and the court reviews these findings of fact for substantial evidence. A finding is supported by substantial evidence if the record contains evidence of sufficient quantity to persuade a fair-minded, rational person of the truth of the declared premise. King County v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 142 Wn.2d 543, 553, 14 P.3d 133 (2000). Each of the elements to be reviewed is discussed separately.
Actual or Perceived Disability
Harris denies that she is disabled, and DOC argues that Harris did not show that her supervisors, at the time the alleged adverse employment actions were taken, perceived her as disabled. But Blodgett, when asked in a deposition whether he thought Harris was suffering from a physical or psychological disability that caused her actions, answered "Absolutely. Something was wrong." This question, however, was asked during a discussion of Harris's medical evaluations, and Blodgett was not asked at what point in time he developed this belief.
Wheeler was asked by Harris's counsel in a deposition whether he believed Harris had a mental health problem, and he answered that he could not be sure because he is not a medical professional:
I'm not trained to make diagnosis. The mood swings, the behaviors that I described earlier, coming to work giddy, upbeat, the next day depressed, angry. I didn't know where that anger was coming from. I didn't know where the happiness and the giddiness was coming from, but it looks like a personality disorder. But I didn't know.
At trial, Wheeler testified that he felt coerced to speculate about Harris:
[Harris's counsel]: And I, on line 20 I asked you: Mr. Wheeler, before I ask you about that, I want to ask you a general question. Did you think that Sandra had some mental problem? Could you read your answer?
[Wheeler]: Her behavior looked like it.
Q: Okay, and I said: And did you have any thoughts as to what that mental problem might be? Could you read your answer?
A: I am a layman but if I were to make a layman's diagnosis, her behavior looked very similar to bipolar personality.
My recollection is that you coerced me in making that statement. You asked me three or four separate times, Did you believe that she had mental health issues? And I said, I am not a psychologist; I don't feel comfortable in making that diagnosis or statement regarding her mental health, and you pressured me. You — in fact I recall this very vividly. You said, If you had to, and you said that three times, sir. And so if I had to, I said that I believe it was a bipolar personality.
. . . .
I never addressed — I never addressed her behavior from a mental health standpoint. I always addressed her anger — or her behavior, whether it was anger or intimidation or threatening comments or vicious comments.
VRP (June 23, 2005) at 309-11.
Harris also points to her personality disorder diagnosis as evidence that DOC perceived her to be disabled, but this diagnosis was made after all the alleged adverse employment actions had been taken and is therefore not relevant as to whether DOC perceived Harris to be disabled when taking employment actions against her.
The evidence is thin that DOC employees perceived Harris as disabled. For purposes of this analysis, however, we assume but do not determine that Blodgett and Wheeler's testimony is sufficient to permit a jury to find that DOC perceived Harris to be disabled, and we go on to consider the other elements of disability discrimination.
Adverse Employment Actions
Harris argued below that DOC's adverse employment actions were failing to promote her, imposing two periods of home assignment, and subjecting her to fit-for-duty medical evaluations. DOC does not address whether Harris's nonpromotion was adverse, but claims that home assignment and the medical evaluations were not adverse because the facts in this case demonstrate that those actions were justified by Harris's behavior problems.
DOC argues that the medical evaluations were investigatory and, thus, not adverse under Kirby. Harris disputes this, but even if the medical evaluations are assumed to be investigatory and thus not adverse, it is undisputed that during a portion of Harris's second home assignment, she was not paid her salary and she applied for promotions for which she was not selected. This type of action is clearly adverse. See Davis v. Dep't of Labor Indus., 94 Wn.2d 119, 615 P.2d 1279 (1980) (failure to promote is actionable adverse employment action); Kirby, 124 Wn. App. at 465 (reducing pay constitutes adverse employment action). We conclude that Harris did establish that adverse employment actions were taken against her.
DOC also claims that Harris should have been estopped from arguing that the medical evaluations were adverse because she agreed to them in the settlement agreement. Harris argues that DOC cannot raise this estoppel argument for the first time on appeal. We need not determine whether Harris could claim the medical evaluations were adverse actions (or whether DOC can argue that here) because, as argued in this section, the unpaid home assignment and failure to promote are clearly adverse — so Harris met her burden with regard to this element.
Even assuming that Harris met all the elements of a prima facie case, however, we nonetheless conclude that DOC provided a nondiscriminatory explanation for its actions and Harris did not meet her burden to show that the explanation is mere pretext. Although "[t]he question of pretext is generally a question for the trier of fact when there are competing inferences of discrimination in a case," Fell v. Spokane Transit Auth., 128 Wn.2d 618, 642, 911 P.2d 1319 (1996), there are no competing inferences of discrimination here. There is no evidence in the record from which a reasonable trier of fact could conclude that DOC took action against Harris because of her perceived disability. Each of the actions taken against her was connected to a particular behavioral episode, and Harris has not established that the actions taken were not warranted by her behavior. DOC followed its disciplinary procedures in taking these actions, and Harris's counsel at oral argument acknowledged that no demeaning language — related to her perceived disability or otherwise — was used against Harris during this process.
Harris generally states that other DOC employees who used coarse language and had conflicts with attorneys were not disciplined or medically evaluated. But she has not provided any specific examples where other DOC employees behaved the same way she did — either in terms of how severely other employees disrupted the workplace, the number of conflicts sustained, or length of time over which conflicts occurred — and were treated differently. At oral argument, Harris's counsel acknowledged that the record does not contain specific examples of other DOC employees behaving similarly to Harris. Without a specific showing that another DOC employee (who was not perceived as disabled) behaved in a similar way but was treated differently, Harris has not established that DOC's actions were based on her disability and not her behavior.
While she argues that DOC mischaracterized the severity of her admittedly angry and hostile behavior, even if this is true, mischaracterization does not equate with disability discrimination. The evidence establishes that DOC supervisors were concerned about Harris's behavior. Even assuming that one or more of Harris's co-workers believed she was disabled — and the evidence of this belief is extremely thin — she has not established that DOC's actions were taken because of her perceived disability and not because of the well-documented and essentially undisputed angry and hostile behavior she displayed. DOC met its burden to provide a nondiscriminatory reason for the actions taken against Harris, and she did not provide sufficient evidence from which a reasonable trier of fact could find that the reason provided was mere pretext for disability discrimination. Thus, we reverse this verdict because it is not supported by substantial evidence in the record.
Disability Discrimination: Hostile Work Environment
DOC argues that Harris did not present sufficient evidence of a hostile work environment because she did not show that DOC's conduct was beyond merely offensive or pervasive enough to create an abusive work environment. Harris contends — without further explanation — that there was sufficient evidence of a hostile work environment based on her disability.
"[A] plaintiff in a disability-based hostile work environment case must prove (1) that he or she was disabled within the meaning of the antidiscrimination statute, (2) that the harassment was unwelcome, (3) that it was because of the disability, (4) that it affected the terms or conditions of employment, and (5) that it was imputable to the employer. The finder of fact must determine whether the plaintiff has met his or her burden as to each of these elements."
Robel, 148 Wn.2d at 45.
Even assuming Harris is disabled and was harassed by DOC, Harris did not establish that DOC's harassment was because of her disability. As discussed above, Harris has not established that DOC's actions were taken because of her disability and not because of legitimate concerns about her admittedly angry and rude behavior. Therefore, Harris has not met the third element of this claim and did not establish a prima facie case. The verdict is thus not supported by substantial evidence in the record and we reverse.
Outrage
DOC contends that its actions were investigatory and not sufficiently outrageous as to warrant tort liability. Harris argues that whether conduct is outrageous is a question for the jury and that courts have upheld outrage verdicts for less egregious conduct.
An outrage claim has three elements: "'(1) extreme and outrageous conduct; (2) intentional or reckless infliction of emotional distress; and (3) actual result to the plaintiff of severe emotional distress.'" Kirby v. City of Tacoma, 124 Wn. App. at 473. The first element is satisfied by a showing of conduct "'so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.'" Grimsby v. Samson, 85 Wn.2d 52, 59, 530 P.2d 291 (1975) (italics omitted). Whether conduct is outrageous is generally a jury question, but the trial court must first determine whether reasonable minds could differ as to whether the conduct has been sufficiently extreme and outrageous to support liability. Dicomes v. State, 113 Wn.2d 612, 630, 782 P.2d 1002 (1989).
Here, the trial court determined that reasonable minds could differ and, thus, permitted the outrage claim to be considered by the jury. DOC argues that there is insufficient evidence in the record to support the jury's outrage verdict. Harris argues that DOC's conduct — not selecting her for positions, requiring her to undergo medical exams, placing her on home assignment, writing administrative disciplinary reports — is the type of conduct about which reasonable minds could differ as to outrageousness, and thus, the claim was properly considered by the jury.
DOC's conduct, however, does not rise to the level of outrage. Harris's case is analogous to Kirby, where the court concluded that the plaintiff's outrage claim was properly dismissed on summary judgment because the employer's alleged actions were "little more than insults, indignities, threats, annoyances, petty oppressions, or other trivialities." Kirby, 124 Wn. App. at 474. There, Kirby, a police officer, alleged that he was required to undergo fit-for-duty medical examinations, was the subject of numerous administrative investigations, was orally reprimanded for failing to follow policy, was threatened with suspension or termination for challenging a superior in an open meeting, had his e-mail searched in retaliation for raising an issue about officer safety, was passed over twice for promotion (even though he had the highest ranking among the job candidates) because other candidates were a better fit with the organizational structure and had better teamwork skills. civilized community.'" Kirby, 124 Wn. App. at 474 (quoting Grimsby, 85 Wn.2d at 59). The court also noted that actual termination or even threats of suspension or termination do not constitute outrageous behavior and neither does being "passed over for a promotion based on negative reviews by his supervisors and negative predictions about his ability to advance team goals." Kirby, 124 Wn. App. at 474.
Harris attempts to distinguish Kirby, claiming that she was subjected to conduct far more egregious than was Kirby, and in any event, it was a question for the jury. She points to Robel, where she alleges the court upheld an outrage verdict with less egregious conduct than in her case. In that case, the plaintiff sustained a workplace injury to her back and was given a light-duty assignment. While Robel worked at that assignment, her co-workers imitated Robel injuring her back, laughing at the injury, and calling Robel obscene names. The co-workers also told customers that Robel had fabricated the injury and was being punished by their employer with the light-duty assignment. Robel alleged her co-workers and her supervisor repeatedly stared and laughed at her. After she reported this conduct to her union representative, Robel's co-workers were warned that future harassment could result in termination. Robel's co-workers laughingly admonished each other not to harass Robel and continued the name-calling and imitating. Robel obtained a work release from her doctor and gave it to her supervisor, who told other employees, "Can you believe it, [Robel]'s gonna sit on her big ass and get paid." Robel, 148 Wn.2d at 41. The trial court found liability for, inter alia, outrage, but the outrage verdict was reversed by the Court of Appeals. The Washington Supreme Court granted Robel's petition for review, reversing the Court of Appeals. The court concluded that because the trial court entered unchallenged findings that Robel was repeatedly called vulgar names at work, by co-workers as well as her supervisor, there was sufficient evidence of outrageous conduct
While Harris cites Robel as a case where less egregious conduct was deemed sufficiently outrageous, we conclude that the facts of Robel are far more egregious than the facts here. Harris was not taunted or called derogatory or vulgar names either by co-workers or supervisors, and Harris's counsel acknowledged the lack of demeaning language used against Harris. DOC's actions were not so extreme as to shock the conscience. She was subjected to workplace discipline and medical examinations and passed over for promotion, but we, like the Kirby court, conclude that this conduct — while arguably insulting and annoying — is not atrocious or utterly intolerable and, thus, does not rise to the level of outrage sufficient to trigger liability. Viewing the record in a light most favorable to Harris, there is insufficient evidence of extreme and outrageous conduct on this record, and we therefore reverse the outrage verdict. Gender Discrimination
Harris cross-appeals the trial court's dismissal of one of her claims on summary judgment, arguing that she had set forth a prima facie case of gender discrimination.
To establish a prima facie case of gender discrimination, an employee must prove (1) membership in a protected class, (2) the employee is qualified for the job or performing substantially equal work, (3) an adverse employment decision, including termination or denial of promotion, and (4) selection by the employer of a replacement or promoted person from outside the protected class. Kuest v. Regent Assisted Living, Inc., 111 Wn. App. 36, 44, 43 P.3d 23 (2002). Once a plaintiff establishes a prima facie case of discrimination, the burden shifts to the employer to provide a nondiscriminatory explanation for the apparently discriminatory result. Domingo v. Boeing Employees Credit Union, 124 Wn. App. 71, 77, 98 P.3d 1222 (2004). The plaintiff must then show that the employer's reasons are actually a pretext for discrimination. Domingo, 124 Wn. App. at 77. If the plaintiff does not present evidence that the employer's reasons are mere pretext, then summary judgment is proper. Domingo, 124 Wn. App. at 78.
The parties agree that Harris established a prima facie case of gender discrimination with regard to her November 2000 nonselection, but DOC contends that it provided nondiscriminatory reasons for Harris's nonselection and Harris failed to establish that those reasons were mere pretext.
Harris argues that DOC's stated reasons for not selecting her (her behavior problems) are false, pointing to her superior qualifications and positive performance reviews. While DOC does not contend that Harris was unqualified for the job, DOC was entitled to consider the entirety of her record when making its selection. The fact that Harris had successfully performed her job does not mean that Wheeler's concerns about her behavior problems were false. Harris, in fact, acknowledges that she had a history of documented behavior problems before the November 2000 nonselection. Essentially, she argues that her positive qualifications should have outweighed her negative behavior, but she does not establish that her negative behavior did not justify nonselection. Even if Wheeler did give undue weight to Harris's history of behavior problems, that fact does not establish that his explanation for his decision is merely a pretext for discrimination. See Domingo, 124 Wn. App. at 88-89 ("Incorrect thinking on the [decision-maker's] part does not prove the [employer's] explanation is a pretext.").
As further evidence of gender discrimination, Harris contends that Wheeler gave her a sexist explanation for her nonselection when he told her that she was not selected because she was "high-maintenance." Harris has cited no authority establishing that "high-maintenance" is a gender-specific term, and we conclude that this term is not gender-specific and, thus, not evidence of gender discrimination.
We conclude that Harris did not present sufficient evidence that DOC's stated nondiscriminatory reasons for not selecting Harris in November 2000 were mere pretext for gender discrimination. Therefore, the trial court did not err in dismissing this claim on summary judgment, and we affirm.
Attorney Fees
Harris requests attorney fees and costs as authorized for prevailing parties under WLAD. RCW 49.60.030(2). Because she has not prevailed here, however, we do not award her attorney fees.
DOC requests attorney fees and costs as a prevailing party under RAP 14.2 and RAP 18.1, which authorize an award of fees and costs to a prevailing party where permitted by applicable law. DOC has prevailed here, but has not cited any applicable law authorizing an award of fees and costs. We therefore refuse to award DOC its attorney fees and costs on appeal. For the foregoing reasons, we reverse and remand for entry of judgment in favor of DOC.
WE CONCUR: